MATHAI ANNAKUTTY EDAVAKA PUTHENPURAYIL Vs. ISAAC IYPE

JUDGEMENT

(1.) This is an appeal against acquittal. Accused 1 and 2 were tried under S.323 and 114 IPC., by the Additional First Class Magistrate, Moovattupuzha in S. T. 1026/65 for causing injuries to one Annakutty by pelting stones at her. The first accused is the son of the second accused. First accused was engaged at about 1 P. M. on 29 8 1965 in grazing his oxen near P. W. 1's compound. The oxen destroyed the cultivation in her compound. She protested and asked him to take away the cattle from there. He refused, whereupon she threw stones at the oxen to scare them away. One of the stones hit the bull. This provoked the first accused and he abused her in vulgar language and threw a stone at her. The stone struck her left leg. The second accused the father, ran up to the scene and instigated the first accused to commit further acts of violence. He even asked his son to do away with the girl. Thereupon the first accused again threw a stone which hit her right leg. pw. 1 raised an alarm which brought to the scene a few neighbours and thus further untoward was averted. pw. 1 was treated in the hospital for the injuries and an X-ray photo was also taken. After her return from the hospital the complaint was filed.

(2.) The accused denied having committed the act alleged against them. pws. 2 and 3 are the eye witnesses. The Magistrate who tried the case was transferred, after the trial was over. All the witnesses were examined by him and the accused also was questioned. The hearing of the case alone remained to be done. The successor Magistrate, however, without recalling and re-examining the witnesses heard the arguments and disposed of the case acquitting the accused. The procedure adopted according to the learned counsel for the appellant has resulted in a miscarriage of justice, in that the evidence has been misread and misappreciated. To quote one instance of misreading, according to the learned Magistrate, 'Pw. 1 had at first stated that the incident took place in her house, but it has come out in the cross examination that the incident took place in the field.' This is not correct and as a matter of fact I do not see any such discrepancy in her evidence. Probably from the way in which the evidence was recorded by the predecessor-Magistrate, it appeared to his successor that what the witness stated was that the occurrence took place in the house and not in the compound. There are other misreadings also. If the case had been heard by the self same Magistrate who had examined the witnesses such short-comings could have been avoided. The successor-Magistrate, no doubt, has the discretion to have the trial from the very beginning or to proceed from the point at which the out-going Magistrate had left it. But in cases of this nature where only the substance of the evidence is found on record, it is always advisable in the interests of justice, to have the trial from the very beginning. Obviously, the notes of evidence left by one Magistrate cannot be suitably used by another who may subsequently be entrusted with the trial of the case. For the same reason it must be held that the conviction by the successor-Magistrate based on the notes of evidence left by his predecessor, is not in order. It was so held by the Allahabad High Court in Munshi v. State (AIR 1954 All. 356).

(3.) This court will not under normal circumstances interfere to set aside acquittals in petty assaults. But the point raised in this case being of some importance, interference has been necessitated. I would, therefore, set aside the order of acquittal and remand the case to the learned Magistrate for a retrial and disposal according to law.